A Taxing Case: Pending Supreme Court Controversy Could Lead To More Public Financial Support For Religion

Editor’s Note: This is the first of a two-part blog post by Carmen Green, a Madison Fellow in AU’s Legal Department. Read the second part here.

Back in January, the U.S. Supreme Court agreed to hear a case that has the potential to change church-state law dramatically – and not for the better.

Perhaps you’ve heard rumblings on social media about it. Seen articles accusing the State of Missouri of discriminating against churches and people of faith? Scrolled past videos asserting that all children deserve safe playgrounds? That was it.

Missouri’s Department of Natural Resources runs a recycling-encouragement program that provides state money to public schools and non-profit organizations so that they can purchase rubber chips made from old tires for their playgrounds. Few programs sound less controversial: The environment wins as worn tires are put to a new, productive use, and children get fewer skinned knees.

But as usual, reality is much more complicated.

Trinity Lutheran Church runs a preschool and daycare center out of its church facilities. And it applied for a public grant to resurface its playground.

Children attending the preschool sing for Trinity Lutheran’s Sunday worship services, with one of the teachers leading them. Parents who send their children to the preschool are encouraged “to be faithful in the use of God’s Word and in attendance at services in God’s house.” They are also invited to attend services at Trinity Lutheran. This is because Trinity Lutheran “believe[s] that young children benefit from an environment in which they have significant interaction with Christian adults as role models and helpers in leading a Christian life.”

Plainly, Trinity Lutheran uses its preschool to evangelize, instruct children in the tenets of Christianity, and minister to families with young children – all of which are religious activities. The church unquestionably has every right to do all of that; these are rights protected by the First Amendment.

Angry over the denial of the grant, the church enlisted Alliance Defending Freedom (ADF), a large Religious Right legal group, to sue on its behalf. Two federal courts ruled against the church, and now the matter is headed to the Supreme Court.

This case is about more than one church in Missouri, though. Missouri is one of approximately 38 states to have “no-aid” clauses like these in their constitutions. The clauses generally require that public money should not be given to religious institutions or used to further religious purposes. Most state courts that have analyzed these provisions have interpreted them as more exacting than the federal Constitution’s Establishment Clause (that portion of the First Amendment that states there shall be no law “respecting an establishment of religion”). That is, state no-aid clauses generally forbid uses of public money that may be allowed by the First Amendment. And lest anyone suspect that these laws were created by modern anti-religion forces, most of them date from the 19th Century. Missouri’s provisions were adopted in the 1870s and then re-ratified in 1945.

And the principles that they express are older still.

Roger Williams, a minister and the founder of Rhode Island, wrote in 1644 that church-state separation was crucial to protect religious believers. He advocated for the erection of a “hedge or wall of Separation between the Garden of the Church and the Wilderness of the world,” so that churches could develop their theology and individuals could come to their beliefs freely and without pressure to conform to a governmental mandate.

The Founding generation echoed this concern. Thomas Jefferson’s Virginia Bill for Establishing Religious Freedom declared that governmental sponsorship of religion “tends…to corrupt the principles of that very religion it is meant to encourage….” And James Madison agreed: “[R]eligion & Govt. will both exist in greater purity, the less they are mixed together.”

Not only does governmental support of religion undermine believers’ independence, but the Founders recognized that the provision of taxpayer money to a religious institution is itself a religious-liberty violation. Jefferson forcefully declared that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.” And in response to a proposed bill to pay “teachers of the Christian religion” with Virginia tax dollars, Madison stated: “Who does not see…that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?”

The states’ constitutional no-aid clauses embody these two religious-liberty concerns: Government must not be allowed to corrupt religious doctrine, and individuals should not be compelled to provide financial support to a religion to which they do not subscribe.

The clauses have been faithfully protecting religious liberty in this manner for the past 150 years. But now Trinity Lutheran and its allies in the Religious Right want to change all that.